Q&A: Could Sandy postpone the election?

By Josh Lederman

Tuesday, October 30, 2012 - 4:06 pm

WASHINGTON — One week before a close election, superstorm Sandy has confounded the presidential race, halted early voting in many areas and led some to ponder whether the election might even be postponed.

It could take days to restore electricity more than 8 million homes and businesses that lost power when the storm pummeled the East Coast. That means it's possible power could still be out in parts of some states on Election Day next Tuesday — a major problem for precincts that rely on electronic voting machines.

But as the storm breached the coast, even some of those intimately involved in the election seemed in the dark about what options are available to cope with the storm. Asked Monday whether President Barack Obama had the power to reschedule the election, White House press secretary Jay Carney said he wasn't sure.

Some questions and answers about what's possible and not when it comes to reworking Election Day.

Q. Could the Nov. 6 election be changed?

A. Yes, but it's highly unlikely, and it's not up to the president. Congress sets the date for the presidential election — the Tuesday after the first Monday in November, every fourth year. Congress could act within the next week to change the date, but that would be tough because lawmakers are on recess and back home in their districts campaigning for re-election. Plus, it likely that would mean changing the date for the entire country, not just those affected by the storm. What's more, Congress only selects the date for federal races, so changing the date would wreak havoc for state and local elections also scheduled for Nov. 6. States might have to hold two separate days of voting, which could bust state budgets.

Q. What about pushing back the election just in some states?

A. It's possible, but the legal issues get tricky. States, by and large, are in charge of their own elections. Each state has its own laws dealing with what to do if an emergency jeopardizes voting and who can make the call. Federal law says that if a state fails to conduct an election for federal races on the day Congress chooses, the state legislature can pick a later date. But state and federal laws don't always jive perfectly. Virginia Gov. Bob McDonnell has said his state's laws don't grant him authority to reschedule the presidential election.

Q. Have elections ever been postponed before?

A. Yes, but not on the presidential level. New York City was holding its mayoral primary when terrorists struck on Sept. 11, 2001, and the city rescheduled the election. After Hurricane Katrina in 2005, Louisiana's governor postponed municipal elections in New Orleans after elections officials said polling places wouldn't be ready.

Q. Other than rescheduling the election, can anything else be done?

A. Voting hours could be extended at various locations. In places where electronic voting machines are in use, paper ballots could be used instead. Some areas also might choose to move polling locations if existing ones are damaged, inaccessible or won't have power on Election Day.

Q. Would those options create any other problems?

A. Lots. If poll hours are extended, under a 2002 law passed by Congress in response to the disputed 2000 presidential election, any voters who show up outside of regular hours must use provisional ballots, which are counted later and could be challenged. Sandy's impact was felt in some of the most competitive states in the presidential race, including Virginia and Ohio. The more provisional ballots that are cast, the greater the chances are that the winner won't be known until days or even weeks after the election.

There's another issue if poll hours are extended in some areas — such as counties with the worst storm damage — and not in others. That could prompt lawsuits under the Constitution's Equal Protection Clause, said Edward Foley, an election law expert at The Ohio State University.

Relocating polling places is also risky because it could drive down turnout, said Neil Malhotra, a political economist at Stanford University's Graduate School of Business. "If you disrupt their routine and the polling place they've always been going to, even if you don't move it very far, they vote less," he said.

Q. What is the federal government doing to help?

A. The Federal Emergency Management Agency's administrator, Craig Fugate, said Monday he anticipated the storm's impact could linger into next week and affect the election. He said FEMA would look at what support it could provide to states before the election. "This will be led by the states," he said.